Citation Nr: 0616856
Decision Date: 06/08/06 Archive Date: 06/26/06
DOCKET NO. 02-15 373 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an effective date earlier than October 25,
1999 for the grant of service connection for degenerative
myopia of the left eye.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and appellant's mother
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The veteran served on active duty from August 1961 to
September 1963. This matter comes to the Board of Veterans'
Appeals (Board) on appeal from the Department of Veterans
Affairs (VA) Regional Office (RO) in Winston-Salem, North
Carolina.
In October 2003, and again in January 2005, the Board
remanded this claim to the RO for additional development.
The case has been returned to the Board and is ready for
further review.
FINDINGS OF FACT
1. A RO letter determination in June 1993 informed the
veteran that new and material evidence had not been submitted
to reopen a claim of entitlement to service connection for a
left eye disorder. That determination is final.
2. The date of the veteran's reopened claim for service
connection for a left eye disorder was October 25, 1999.
3. There was no communication by the veteran or a duly
appointed representative between the final RO letter
determination in June 1993 and the claim received on October
25, 1999, indicating intent to apply for service connection
benefits.
CONCLUSION OF LAW
Entitlement to an effective date earlier than October 25,
1999, for a grant of service connection for degenerative
myopia of the left eye is not warranted. 38 U.S.C.A. §§
5107, 5110 (West 2002 & Supp. 2005) 38 C.F.R. § 3.400 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA regulations provide that the effective date for an award
of disability compensation based on an original claim for
direct service connection shall be the day following
separation from active service or the date entitlement arose,
if the claim is received within one year after separation
from service; otherwise, and for reopened claims, it shall be
the date of receipt of the claim, or the date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a) (West
2002); 38 C.F.R. § 3.400(b)(2)(i), (r) (2005).
VA regulations also provide that the terms claim and
application mean a formal or informal communication in
writing requesting a determination of entitlement or
evidencing a belief in entitlement, to a benefit. 38 C.F.R.
§ 3.1(p) (2005). Generally, the date of receipt of a claim
is the date on which a claim, information, or evidence is
received by VA. 38 C.F.R. § 3.1(r) (2005).
Any communication or action indicating intent to apply for
one or more benefits under the laws administered by VA may be
considered an informal claim. Such informal claim must
identify the benefit sought and demonstrate an intent to
apply for that identified benefit. If an executed
application form is submitted to VA within one year after the
date it was sent to the claimant, it will be deemed filed on
the date the informal claim was received. See 38 C.F.R. §
3.155(a) (2005).
The record reveals that the veteran was granted service
connection for a left eye disorder by the RO in October 2001,
and assigned an effective date of October 25, 1999, the date
of the veteran's reopened claim. The veteran initially filed
a claim for service connection in November 1965. He was
notified of the denial of that claim in April 1966. The
denial was confirmed and continued by the RO in October 1973,
February 1974, and July 1974, with notice of each denial
properly sent. In February 1975, the Board denied the claim,
finding that no new and material evidence had been received
to reopen the claim. Thereafter, the claim was considered on
several occasions; however in each instance the veteran was
informed that he had to submit new and material evidence to
reopen his claim. He did not timely respond to any notice
and thus these decisions became final. (See, June 1975 reply
from VA to the veteran regarding a letter to the President,
RO decision of September 1975 and notice that same month, RO
decision of November 1976 and notice that same month, RO
decision of February 1977 and notice of March 1977, RO
decision of March 1977 and notice letter to veteran of May
1977, RO decision of October 1977 and notice that same month,
RO decision of May 1978 and notice that same month, October
1982 letter from VA to the veteran regarding his wife's
letter to the President requesting he send new and material
evidence to reopen his claim, and June 1993 letter to the
veteran regarding a letter from his son concerning service
connection for a left eye disorder).
On October 25, 1999, the RO received a VA Form 21-526, the
veteran's claim for a left eye disorder. In an October 2001
rating action service connection was granted and the RO
assigned an effective date of October 25, 1999, the date of
the veteran's reopened claim. A 30 percent rating was
assigned.
Unappealed rating determinations as noted above are final.
See 38 U.S.C.A. § 7105 (West 2002). A decision of the Board
in February 1975 found that a new factual basis had not been
shown to reopen the claim for service connection for the left
eye disorder. That decision of the Board is final. See 38
U.S.C.A. § 7104(b) (West 2002). Thereafter, rating decisions
and determinations informed the veteran that new and material
evidence had not been received to reopen the claim for
service connection for a left eye disorder. Those
determinations are final. See 38 U.S.C.A. § 7105 (West
2002).
Based upon the evidence of record, the Board finds that there
is no indication of any earlier filed document that may be
accepted as a formal or informal claim for this benefit prior
to October 25, 1999. Since the facts are clear cut and
against the claim for an earlier effective date, the doctrine
of reasonable doubt is not for application. Therefore, the
veteran's claim for entitlement to an earlier effective date
must be denied.
Duties to Notify and Assist
VA has a duty to notify the appellant and his or her
representative of any information and evidence necessary to
substantiate and complete a claim for VA benefits and to
assist the veteran in the development of his or her claim.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
and Supp. 2005); 38 C.F.R. §§ 2.102, 3.156(a), 5.159 and
3.326(a) (2005).
Notice, as required by 38 U.S.C. § 5103(a), must be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004). This notice consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
Here, the veteran was provided proper notice in January 2005
and in February 2005. Both letters properly complied with
the requirements noted above. The Board notes that the
veteran raised this issue in his original notice of
disagreement when service connection was initially granted.
The RO subsequently issued a statement of the case, notifying
the veteran of the laws regarding establishing effective
dates in August 2002. The appellant has the right to
content-complying notice and proper subsequent VA process,
which he has received. The requisite notice was provided to
the appellant before the final transfer and certification of
the case to the Board, and he had ample time in which to
respond to the notice letter. Mayfield v. Nicholson,
19 Vet. App. 103, 121 (2005), rev'd on other grounds, N. 05-
7157 (Fed. Cir. Apr. 5, 2006). The appellant has had a
"meaningful opportunity to participate effectively" in the
processing of his claim. Mayfield , Id. The Board finds
that the present adjudication of the issue will not result in
any prejudice to the appellant.
On March 3, 2006, the Court issued a decision in the
consolidated appeal of for Dingess v. Nicholson, 19 Vet. App.
473 (2006), which held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. Those five
elements include: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. The Court held that upon receipt of
an application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the present appeal, the veteran was provided with notice
of what type of information and evidence was needed to
substantiate his claim for service connection, and he was
provided with notice of the type of evidence necessary to
establish an effective date for the disability on appeal.
This was accomplished through the statement of the case that
was issued on entitlement to an earlier effective date in
August 2002. Thus, there is no prejudice to the veteran in
proceeding with the issuance of a final decision.
In addition, the duty to assist the veteran has also been
satisfied in this case. The appellant has had a hearing, and
records have been submitted. He has not identified any
records which could be pertinent to his claim that have not
been secured. There is no indication that there are any
outstanding records that are pertinent to this claim. For
these reasons, the Board concludes that VA has fulfilled the
duty to assist the veteran in this case.
ORDER
Entitlement to an effective date prior to October 25, 1999
for the grant of service connection for degenerative myopia
of the left eye is denied.
____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs